Was McElroy entitled to promotion pursuant to section 143.036?
Next, McElroy argues that if section 143.072 does not apply, section 143.036 required the City to promote him. Specifically, McElroy urges us to hold that Brown’s absence created a “vacancy” which required the City to permanently promote McElroy in November 2002–within sixty days of the temporary appointment–rather than his subsequent promotion in June 2003. See Tex. Loc. Gov’t Code Ann. 143.036(a), (e). Section 143.036 provides that “[i]f an eligibility list exists on the date a vacancy occurs, the department head shall fill the vacancy by permanent appointment from the eligibility list furnished by the commission within 60 days after the date the vacancy occurs.” (8) Thus, we must determine whether Brown’s absence constitutes a “vacancy” of his position. See id. A vacancy occurs when an existing position is vacated or a newly created position is established by ordinance. See City of Fort Worth v. Nyborg, 999 S.W.2d 451, 455 (Tex. App.–Fort Worth 1999, pet. denied); see also City o
